Guideline

Employment of foreign-trained
doctors
(October 2021)
 Marburger Bund
Verband der angestellten und beamteten Ärztinnen und Ärzte e.V.

Part 1 | Case groups and their legal evaluation

Many foreign-trained doctors who assist with patient care in German hospitals or outpatient facilities
are not aware of the legal classification of their respective activities and the consequences. Is it job
shadowing, an internship, or regular employment?

For some time now, company and personnel committees in inpatient and outpatient care
institutions have also had to increasingly address how they deal with their employees'
participation rights in the application, selection, and recruitment of foreign-trained doctors. The
number of these colleagues is constantly increasing as a result of political and economic
instability in many countries and the shortage of skilled workers in Germany.

Between the taking effect of the Federal Recognition Act in April 2012 and December 2020 31,770
physicians who received their basic medical training outside the European Union/European
Economic Area/Switzerland and 21,519 doctors who were trained within the European
Union/European Economic Area/Switzerland applied for recognition of their qualification. Most
physicians who were trained outside the European Union/European Economic Area/Switzerland
received their basic medical training in Syria (5,007), the Russian Federation (2,769), Egypt (2,406)
and the Ukraine (2,220).

This leaflet is designed to facilitate dealing with various situations and providing supporting
arguments for the foreign-trained doctors themselves, as well as the employee representatives on
site.

Case studies

1. Doctors who complete postgraduate training and aim for the German
medical specialist examination ("guest doctors")

Especially in the past foreign-trained doctors, particularly those from third-party countries,
came to Germany to undergo their training in medical specialties. They often received
financial aid ("grants") in various amounts from their home countries. The background was
mostly bilateral agreements between hospital operators and their home country or country
agreements. The doctors worked either with a limited licence to practice (“Berufserlaubnis”,
under the Recognition Act up to a maximum of 2 years, especially in preparation for the
knowledge test in the absence of equivalence of training) or with full licence to practice
(“Approbation”, if there is equivalence of training).

Group 1: Foreign-trained doctors who received a "grant" directly from their home country and
therefore did not receive collective bargaining remuneration according to the perspective of
the employer/operators of the hospital. Often, the employee/personnel council was not
informed of the application or appointment. The employment contract - if there was one - only
included a note about the grant in the compensation agreement. Social security contributions
and payroll taxes were therefore not deducted. Often, even in other working conditions, there
were differences from regularly employed colleagues, for example, participation in on-call
services was not provided, etc.

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 Legal review:

At the beginning of their employment, the foreign-trained doctors are not only in an
(administrative) postgraduate training relationship, but also in an employment
relationship, which means that they are subject to social insurance and payroll tax. For
the individual legal areas, this results in:

• Right of postgraduate training: The training regulations of the Medical Chambers regulate
that postgraduate training is provided within the framework of an appropriately
remunerated medical occupation (see § 4 para. 2 M-WBO) and thus correspond to the
remuneration of comparable German employees. In the hospital sector, this means the
relevant union rate. If this requirement is not met, the doctor will not be permitted to take
the specialist examination in many chambers.

• Employment law: The employment relationship and the relevant collective agreement or §
612 BGB ("usual remuneration") result in a right to collective fair pay.

• Social security and tax law: Social contributions and payroll taxes must be paid on
the owed (rate) salary.

On these three points there is now agreement between the MB and the German Hospital
Federation (see circular from the DKG No. 032/2015 to their member associations of
January 20, 2015, article "Foreign guest doctors in German hospitals", hospital 6/2015, as
well as article Dr. jur. Eufinger, "The legal status of guest doctors in hospitals", GesR
1/2016, page 8 ff).

Group 2: Foreign-trained doctors whose recruitment/employment at the hospitals follow the

recommendations of the DKG and have the wage "refinanced" by the home country (see
circular 32/15 supra).

The DKG is in favour of the solution of reimbursing the full wage costs (gross remuneration
plus employer's social insurance) from the home country, paying the net amount to the foreign
doctor, and deducting wage tax and social insurance contributions. The alternative solution of
the DKG provides for the re-transfer of the net salary to the home country so that it can be
paid from there to the foreign-trained doctor.

Legal review:

In principle, payment of the work salary by third parties is permissible. At least in hospitals,
which - regardless of their legal status - are mainly in the public sector, the criteria for
allocating (postgraduate training) positions as a result of Article 33 para. 2 of the Basic Law
are only "suitability, capability, and professional performance" of the applicant, but not
economic reasons (such as refinancing wage costs).

2. Doctors who are employed for a limited period to expand their knowledge and
abilities (distinction between employees - job shadowers - interns) - applicability of
the minimum wage law
Foreign-trained doctors are also often employed in hospitals for several weeks/months,
without this being explicitly linked with the objective of Board recognition.

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Different case groups can be distinguished here (a non-exhaustive example):

Group 1: Hospitals employ foreign-trained doctors without specialist medical recognition,

mostly from third-party countries, within the framework of a several-month "job shadowing" or
"internship" (the name varies). As with a probationary period, it is to be clarified whether the
shadower/intern is suitable as a candidate for postgraduate training at the respective hospital.
The doctor has a contract for the relevant period, but does not receive compensation.
Officially, he/she only accompanies everyday clinical practice, but - at least according to the
contract - is not medically active (see Bremen pilot project, Weser-Kurier of 1/03/2015,
"Hospitals are looking for young doctors"; Only shadowing - doctor from Syria may not work
"WAZ online 6/04/16).

Group 2: Doctors trained in third-party countries do an internship during the period in which
they are waiting (due to lack of equivalence of their training) to take their assessment test
and/or language test (or "job shadowing") of at least three months' duration.

Group 3: The purpose of the job shadowing/internship/activity is to enable the foreign

(specialist) doctor to expand his/her skills and knowledge in clinical practice (see and learn
certain methods of operation/techniques/research processes, deepen existing knowledge,
etc.).

Legal assessment

The following criteria can be used to define a distinction between job shadowing or an
internship and employment:

Job shadowing: A legal definition of the concept of "shadowing" in medicine is not yet
available, but it can be used as jurisprudence. According to this, shadowing is a “purely
observational activity by as yet unapproved participants, who only perform some medical
activities in the interest of learning and is usually for a few days or weeks" (SG Marburg
v. 26/11/2008 - S 12 KA 459/07).

This definition is consistent with that of the general language use: Work shadowing means
"observing a jobholder at work with the aim of learning how to exercise that function"
(Onpulson Wirtschaftslexikon) or the "recommendations for further medical education" by the
German Medical Association (as of 24/04/2015): "Shadowing is for acquiring, deepening, and
improving knowledge and skills... work shadowers participate at no cost in whole or in part
with the daily work of their shadowing site".

For the definition of this "work shadowing", it is therefore important that the shadower
primarily observes and does not work in the sense of medically treating the patient (see also
PM ÄK Bremen 18/01/16 and writing by Bremer Economics Senator, "Only accompanying
and observing is permitted" - keyword: "Hands behind your back")

Legal consequence:

A compensation claim is not possible, not even on the minimum wage pursuant to § 22 MiLoG
(this is also below in "Internship"). The doctor is usually given a job shadowing contract.

The DKG has also dealt with the issue and recommends to the hospitals, due to the as yet
lacking jurisprudence on the minimum wage law (MiLoG), that minimum wage should be

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paid including in the case of work shadowing (see circular from the DKG No. 032/2015
a.a.O.).

Internship: Since the minimum wage law only came into force on 1/01/2015, there is no
jurisprudence to clarify whether it is an internship in an individual case which creates the right
to minimum wage according to § 22 para. 1 MiLoG in conjunction with § 26
Bundesbildungsgesetz (BBiG) and very little literature.

According to the new legal definition, an intern is "anyone who... undergoes a certain
occupational activity for a limited period of time to acquire practical knowledge and
experience in order to prepare for professional activity, without it being vocational training as
defined by the Vocational Training Act or comparable practical training."

The following demarcation criteria between internship and job shadowing or

employment relationship can be used:

• Interns are subject to the employer's right of action. For this reason, interns are not
shadowers, who "do not undertake any kind of work, but are only guests in a company in
order to get to know the work methods without becoming employed themselves. In the
case of the work shadowing relationship, the focus is on acquiring knowledge and skills
through observation and explanations. They are subject only to domiciliary rights, but not
to the management right of the business owner." (Richert/Nimmerjahn, comment for the
MiLoG 2015, § 22 Rdnr.34)

• In contrast to "real" employment, the education purpose of an internship, i.e. learning the
necessary professional skills, knowledge, capabilities, and experience, and not the
performance of work, is the priority (see Picker/Sausmikat, "Minimum wage as an
exception?", NZA 17/2014, 942).

• Paid employment and not the acceptance of an internship (and, more importantly, work
shadowing) also applies if the respective medical activity is indispensable for the
respective patient as well as for continuing to provide medical care, and the foreign-
trained doctor is employed for his/her already acquired abilities instead of a
(postgraduate training) doctor (BAG of 27/10/1960 - 5 AZR 427/59).

Legal consequence:

From the affirmation of a - voluntary - internship according to the above criteria, a minimum
wage is generally applied. However, there must be a limited licence to practice medicine
(Berufserlaubnis) at the least.

Exceptions:

Not subject to minimum wage are (voluntary) internships within the framework of
certain preparatory courses, which are, for example, for preparing for an
assessment test.

These occupational phases in the context of measures of active employment promotion under
SGB III are measures which focus on integration in the training and labour market. Measures
under the Third Social Code are those in which either the customer of BA is assigned an
education provider or attend a course at an educational institution whose funding was assured

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by the BA by the education vouchers. The legislature considered it unnecessary to include
these professional phases in the catalogue of § 22 para. 1 sentence 2.

In this context, the statutory minimum wage has no effect in the case of grants for continuing
vocational training pursuant to §§ 81 ff SGB III. Persons who complete an in-company
learning phase as part of a continuing vocational training course pursuant to § 180 SGB III are
not covered by the scope of this Act, pursuant to § 22 MiLoG.

The prerequisite for funding is that the institution (or provider of the measure) is authorised
pursuant to § 176 SGB III and the measure has been approved pursuant to §§ 179, 180
SGB III. Specifically, this means that a measure carrier (such as the mibeg-Institute) can
devise a measure that can consist of the imparting of theoretical knowledge and
occupational-practical phases, and which is approved by a specialist body. These
occupational phases are not subject to the obligation to pay the minimum wage.

The same applies in the case of measures for activation and vocational integration
pursuant to § 45 SGB III. Here too, the applicable statutory minimum wage has no effect on
the measure or measures implemented by or with an employer. They do not constitute an
employment relationship and are not carried out in the same way as an internship.

Paid employment: In all cases where there is no shadowing nor internship, an employment
relationship with the corresponding legal consequences must be given in the affirmative.

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